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Archive for the ‘Defenseless By Decree’ Category

A bill to allow residents of Delaware’s public housing communities to possess firearms was passed Tuesday by the House, with broad bipartisan support.

House Bill 357, sponsored by Rep. John Atkins, D-Millsboro, and Sen. Joseph Booth, R-Georgetown, was introduced in response to a series published by the Caesar Rodney Institute titled: “Delaware Public Housing: Disarmed by Decree.” The series revealed that all public housing residents in Delaware are banned from owning firearms, despite the fact that many live in high-crime areas.

In addition to the legislation, the series also prompted a lawsuit by the National Rifle Association, which recently filed suit against the Wilmington Housing Authority, seeking to force the agency to drop its gun ban.

HB 357, which must now go to the Senate, states:

No public housing authority operating within this state shall have or exercise the authority to regulate, prohibit or otherwise restrict a lessee/tenant of a dwelling owned and operated by such public housing authority from lawfully owning or possessing ammunition, arms or components thereof in such dwelling for the defense of self, family, home and State, and for hunting and recreational use and transporting such ammunition, arms or components thereof to and from such dwelling.

The bill includes an amendment, which was narrowly passed by the House, that will allow the public housing authorities to prohibit firearms in common areas of their properties.

The National Rifle Association’s lawsuit could be the first of several legal actions taken against Delaware housing authorities with active gun bans.

By Lee Williams

WILMINGTON, Del. – The National Rifle Association filed a civil rights lawsuit today against the Wilmington Housing Authority (WHA) and its executive director Frederick S. Purnell, Sr., seeking to force the WHA to allow its residents to possess firearms within their homes.

The civil rights lawsuit was filed in the Delaware Court of Chancery by Wilmington Attorney Francis Pileggi, the founding partner of Fox Rothschild LLP’s Wilmington office.

Francis Pileggi

The question before the court, Pileggi said, is “whether or not residents of a public housing authority can be deprived of their Constitutional right to bear arms for self defense.”

“I think it’s important to remember that the Second Amendment rights being championed here are the first example of civil rights dating from the time of the Civil War,” Pileggi told the Caesar Rodney Institute. “The Second Amendment is just as important as any other amendment in the Bill of Rights.”

CRI’s report revealed that many public housing residents feel trapped in their homes because of crime in their communities, yet they are prohibited from owning firearms for self-defense.

Pileggi filed the suit on behalf of a WHA resident identified only as “Jane Doe.” He said this was done to protect the individual from possible retaliation by WHA officials.

“We are going to be very vigilant,” Pileggi said. “If [retaliation] occurs, we will react properly.”

Doe told the Caesar Rodney Institute she became involved in the lawsuit “to benefit this generation and the generations to come.”

“My generation is about gone,” she said. “The current generation needs the help.”

This is not the first time the NRA – the nation’s oldest civil rights organization – has sued a public housing authority for a gun ban it believed violated the residents’ Second Amendment rights.

The NRA recently settled a lawsuit against the San Francisco Housing Authority, forcing them to remove a firearms ban that was very similar to the bans on the books in Delaware. Several years ago, another NRA suit forced a public housing authority in Portland, Maine to remove their firearms prohibitions.

Dover attorney John Sigler is a CRI board member, immediate past president of the NRA, and a current NRA board member.

“I am deeply saddened to learn that Delaware’s public housing authorities have continued to so steadfastly refuse to restore their law-abiding public housing residents to full citizenship under either the Second Amendment of the United States Constitution or Delaware’s own Constitution, thus making such litigation necessary,” Sigler said. “It is, indeed, a sad day when law-abiding citizens are forced to turn to the courts for vindication of constitutionally-protected rights, and to seek the protection of the courts from the wrongful conduct of governmental authorities who should know better, and who have been repeatedly warned to reform their conduct and their misguided and clearly illegal policies.”

WHA executive director Purnell was not willing to be interviewed for this story.

The Argument

According to documents filed with the court, Doe is described as a WHA resident and as a “responsible law abiding adult who is qualified to own firearms in her home for lawful self defense and other lawful purposes. But for the lease provision, she would forthwith lawfully possess a firearm in her home without the threat of eviction.”

“We’ve conducted a background check and other due diligence to satisfy ourselves she would qualify to purchase a firearm,” Pileggi said.

In the complaint, Doe is asking the court for a declaratory judgment forbidding the housing authority from banning firearms because the action violates the Second and Fourteenth Amendments to the U.S. Constitution, as well as Article 1 Section 20 of the Delaware State Constitution. In addition, the complaint states the gun ban is preempted by existing Delaware law, and exceeds the statutory authority granted to a public housing authority.

That the WHA’s gun ban violates the state constitution, Sigler said, is obvious.

“Article I Section 20 of the Delaware Constitution states: ‘A person has the right to keep and bear arms for defense of self, family, home and State, and for hunting and recreational use.’ It says nothing about the right of governmental agencies and self-important bureaucrats having the right to deprive the poor, the elderly, the disabled, or the socially disadvantaged of their rights simply because of their social and economic status,” Sigler said. “On the contrary, the courts have, time and again, held such social and economic discrimination to be illegal and unconstitutional.”

History of the Delaware gun bans

The Caesar Rodney Institute first revealed that every housing authority in the state prohibited its residents from owning firearms in its special report published Feb. 1.

The report included interviews with public housing residents, a mere handful of the thousands of Delaware’s most vulnerable residents who are forced by their socio-economic status to live in some of the state’s most dangerous neighborhoods, several of which are open-air drug markets.

Violating the gun ban, the residents told CRI, could result in immediate eviction. For many families, an eviction from public housing would leave them with nowhere to go but the streets.

There are already plenty of guns in public housing, these residents said, but they’re in the hands of criminals who pay no heed to state law, much less housing authority rules or regulations.

CRI’s report included copies of leases that clearly banned firearms at all four of the public housing properties.

After CRI’s initial report was published, NRA General Counsel Robert Dowlut sent letters to the executive directors of the housing authorities, warning them litigation was likely if they did not rescind their bans.

“It has been brought to our attention by members of the National Rifle Association and by the Caesar

Rodney Institute that the Dover Housing Authority, Newark Housing Authority, and Wilmington Housing Authority contain lease provisions that prohibit a resident from possessing a firearm. Such a restriction is unconstitutional,” Dowlut wrote.

After receiving Dowlut’s letter, the Newark Housing Authority announced they were rescinding their gun ban. However, the Dover Housing Authority, Delaware State Housing Authority and the Wilmington Housing Authority did not respond to Dowlut’s warning. Instead, they implied they were merely following a federal directive from the U.S. Department of Housing and Urban Development (HUD).

On Feb. 9, however, CRI published a story quoting senior HUD officials, in which they said gun bans were a local decision. HUD, the officials said, never ordered or even implied that local housing authorities should prohibit guns.

The housing authorities then turned to their lawyers for advice. Their lawyers passed, and asked Delaware Attorney General Beau Biden for an AG’s opinion on the constitutionality of the gun bans. In other words, the housing authorities wanted to know whether the individual right to keep and bear arms guaranteed in the Delaware and U.S. Constitutions applied to people living in public housing.

Meanwhile, a bipartisan group of state lawmakers introduced legislation that would limit the authority of public bodies to regulate firearms, absent specific authorization from the General Assembly.

Delaware Gov. Jack Markell strongly opposed the bill, and lobbied against its passage.

The aptly named House Bill 357, however, is languishing in the Delaware House Majority Leader’s desk.

Neither passage of HB 357 nor a decision by Biden will likely have much impact on the outcome of the NRA lawsuit.

“I see this litigation and the legislation currently pending before the Delaware General Assembly as mutually exclusive matters,” Sigler said. “This newly filed litigation is about the vindication of constitutional rights which have been denied to the residents of the Wilmington Housing authority, generally, and denied to this particular plaintiff, specifically; whereas, I see the currently pending legislation being about clarifying and/or expanding Delaware’s firearms preemption laws to apply to all of Delaware’s Housing Authorities and placing the power to enact firearms regulations where it belongs with the General Assembly. In other words, while to the uninformed there might appear to be a confluence of issues, the issues presented in the litigation and the legislation are, indeed, separate and distinct.”

Said Pileggi: “I would respect any opinion the Attorney General would provide, but having said that, the opinion would not be binding on the court.”

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

Delaware’s public housing authorities have requested an Attorney General’s opinion regarding their firearms bans, which Second Amendment legal experts say is unconstitutional.

By Lee Williams

Attorney General Beau Biden is being asked to decide whether the individual right to keep and bear arms guaranteed in the Delaware and U.S. Constitutions applies to people living in public housing.

At a meeting of its board held Tuesday night, the Dover Housing Authority voted to request an Attorney General’s opinion regarding the constitutionality of its gun ban.

Dover Attorney R. Brandon Jones, who serves as counsel to the DHA board, said the DHA mistakenly believed most housing authorities banned their residents from owning firearms.

“This authority felt it had to include those provisions in the lease because we thought that all housing authorities across the country included them,” Jones said. “It came as quite the surprise that it was not the case. The bottom line: this authority wants to do what the law requires. Rather than for us to guess, we feel the appropriate thing to do is to forward this to the attorney general, and get an opinion from the AG.”

Jones said both the Wilmington Housing Authority and the Delaware State Housing Authority told him they too requested an opinion from Biden.

“I don’t know if it’s a fact, but they told me they were going to ask for one too,” Jones said.

At a meeting of the Wilmington Housing Authority board, held Monday evening, the Caesar Rodney Institute asked what, if anything, the WHA intended to do about its gun ban.

Bernadette Winston, who chairs the WHA board, said, “I’m going to tell you right now we don’t have an answer. The board, executive director and our attorney will be considering the issue. When we have an answer, you’ll be one of the first ones called.”

Delaware State Housing Authority spokesperson Christine Hardin would not confirm whether her agency had also asked Biden for a written opinion.

“We’re still reviewing and discussing policy,” Hardin said.

Biden did not return calls or e-mails seeking comment for this story.

The decision to seek an Attorney General’s opinion comes in response to an ongoing investigative series by the Caesar Rodney Institute, which revealed that every housing authority in Delaware banned their residents from owning firearms for self-defense.

After CRI’s series was published, the Newark Housing Authority withdrew its firearms ban. However, the three remaining housing authorities still prohibit their residents from owning firearms.

The National Rifle Association has announced it will sue the housing authorities if the bans are not withdrawn. Similar lawsuits by the NRA have forced housing authorities in California and Maine to drop gun bans.

Biden’s written opinion could ultimately prove costly to Delaware taxpayers, should he rule in favor of keeping the bans, because the NRA is not otherwise likely to drop plans for its suit. Two of the country’s foremost Second Amendment litigators have predicted the court costs; possible damages and attorneys fees associated with defending the gun bans could cost Delaware taxpayers millions of dollars.

Bans legally indefensible

At the DHA board meeting, Jones announced he has researched the legality and constitutionality of the gun bans and found several cases that showed the bans might not violate the rights of the public housing residents.

“There’s a mixed bag of what other jurisdictions have done,” he said.

Jones declined to cite the cases supporting the constitutionality of the bans, however another legal scholar has found quite the opposite.

Dover attorney John Sigler is a CRI board member and former president of the NRA.

“I am encouraged to hear that both the Wilmington Housing Authority and the Dover Housing Authority are seeking legal advice in this matter. That says to me that they recognize the seriousness of the situation and are at least attempting to deal with the situation in a rational and reasoned manner,” Sigler said. “I must caution, however, that every day that passes increases the risk that one of the law-abiding residents of public housing who have been unilaterally stripped of their constitutionally protected right to keep and bear arms for self protection will become the victim of a violent criminal act that might have been otherwise preventable had they been allowed the means to defend themselves, their homes and their families as promised by Article I Section 20 of our Delaware Constitution.”

Sigler is confident legal research conducted by the Attorney General will find the 1990 U.S. District Court case out of the Eastern District of Virginia known as Richmond Tenant’s Organization, Inc v. Richmond Redevelopment and Housing Authority.

“This case is no longer good law,” he said. “Those attorneys will find that the test applied by that court for the purposes of determining the constitutionality of such regulations was specifically rejected by the U.S. Supreme Court in District of Columbia v. Heller,” Sigler said. “Likewise, with the Heller Court’s specific rejection of the so-called “rational basis test” in Second Amendment analyses, all other cases arising in that context before Heller using the rational basis test must also be suspect as to their continued viability as reliable precedent.”

“I am also confident that the attorney general will find the Heller language concerning the God-given right of self defense being a part of the right to keep and bear arms to be instructive, and the recent decision of the Supreme Court of the State of Washington in the case of State v. Sieyes, wherein that Court ruled that the Second Amendment applied to the states to be a harbinger of things to come in the currently pending U.S. Supreme Court case of McDonald v. Chicago. Equally instructive will be the ‘friend of the court’ briefs filed in that case by 38 state Attorneys General, 251 members of the US House of Representatives, 58 members of the United States Senate and 891 state legislators and elected officials including two governors and 3 lieutenant governors – 21 of whom were from Delaware – in which they all agreed with the ultimate conclusion in Sieyes that the Second Amendment applies to the states.”

“Obviously,” Sigler said, the Attorney General need not even reach the conclusion of the Sieyes court or wait until the U.S. Supreme Court decides the McDonald case.

“On the contrary, all they have to do is pull their Delaware Codes off the shelf and read for themselves Article I Section 20 of the Delaware Constitution which states in clear and unequivocal terms; ‘A person has the right to keep and bear arms for protection of self, family, home and State, and for hunting and recreational use.’”

Sigler said the Attorney General will also discover the U.S. 3rd Circuit Court of Appeals case from 1981 called Heatherton v. Sears, Robuck & Company, in which the court held that granting and withholding rights based upon economic status violated the equal protection clause.

“Likewise, they are sure to find in their research three U.S Supreme Court cases, Lefkowitz v. Turley, Keyishian v. Board of Regents, and Sherbert v. Verner, all of which found that the government may not condition entitlement to a public benefit – such as public housing – upon the waiver of a constitutional right.”

“With the Heller Court holding that the D.C ban on the private ownership of handguns in the home for self protection would fail constitutional muster ‘under any of the standards of scrutiny that we have applied to enumerated constitutional rights;’ and Delaware’s Justice Holland writing in his treatise The Delaware State Constitution: A Reference Guide, that ‘The textual differences between this section (Article I Section 20) appear to afford greater protections under the Delaware Constitution than the protections of the Second Amendment to the United States Constitution,’ it would seem that the Attorney General will be left with little choice but to render an opinion that these bans on the private ownership of firearms by law-abiding citizens in public housing are, in fact, unconstitutional and must be rescinded.”

Said Sigler: “I sincerely hope that our Attorney General or other attorneys researching this issue will advise these authorities to do the right thing; avoid the waste of taxpayer dollars in defense of an indefensible position; and to rescind their bans on the otherwise lawful ownership of firearms by law-abiding citizens. It is also my hope that they will do so sooner rather than later because, quite frankly, it is only a matter of time before some innocent victim will be harmed as the direct and proximate result of the intransigence of these three entities in not rescinding this ban sooner.”

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The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.

Both have said their legislation comes in response to an ongoing investigative series by the Caesar Rodney Institute, which revealed that every housing authority in Delaware banned their residents from owning firearms for self-defense.

After CRI’s series was published, the Newark Housing Authority withdrew its firearms ban. However, the Delaware State Housing Authority, along with the Wilmington and Dover housing authorities, still prohibit their residents from owning firearms.

The National Rifle Association has announced it will sue the housing authorities if the bans are not withdrawn. Similar lawsuits by the NRA have forced housing authorities in California and Maine to drop their gun bans.

“I decided to file this bill after the issue was brought to my attention by the Caesar Rodney Institute and the NRA,” Atkins said. “In my opinion, and that of several courts, what these housing authorities are doing is a clear violation of the Constitution.”

Booth said the bill is needed because other than Newark, the three remaining housing authorities have not withdrawn their firearms prohibitions.

“If we put legislation out there, generally the controlling authority will yield or bend,” he said. “This is a legislative maneuver that has worked before.”

“We have to allow their boards, who often meet monthly, time to change,” Booth said. “But we haven’t heard anything from the Delaware State Housing Authority. That concerns me.”

Booth said the bill is garnering support from lawmakers on both sides of the aisle.

“I will be interested in seeing how the administration will respond,” Booth said.

Dover attorney John Sigler, a CRI board member and former NRA President, said the bill will prevent housing authorities or other government agencies from unilaterally deciding to establish their own weapons bans in the future.

“The importance of this bill cannot be over-emphasized. Even if the remaining three Housing Authorities were to rescind their bans today, this is a much needed and very important measure that will ensure that such constitutional violations do not occur in the future,” Sigler said. “As Senator Booth said in an earlier interview: ‘This is a stand up and be counted thing.’”

Sigler hopes the bipartisan support continues.

“I congratulate each and every one of the current sponsors of HB 357, especially the prime sponsors, Rep. Atkins and Sen. Booth, for stepping to the plate to be counted on this measure,” he said. “Additionally, I encourage every member of both parties in both Houses of our General Assembly to step to the plate and do the right thing by becoming co-sponsors on HB 357, and by voting for its quick passage upon their return to Legislative Hall in March.”

John J. Thompson, president of the Delaware State Sportsmen’s Association, the state NRA affiliate, like Sigler, said the bill should prevent future gun bans from being established.

“It will also eliminate the concept of second-class citizenship for people who live in public housing,” Thompson said. “As a matter of policy and principal, that’s critically important.”

Senate Minority Leader Sen. F. Gary Simpson, R-Milford, said he decided to co-sponsor the legislation because “to deny those who are elderly, disabled or low-income their guaranteed gun rights is unfair and unconstitutional.”

Simpson said the bill is garnering good bipartisan support, and will likely pass both Houses.

“I don’t see how anyone could be against it,” he said. “We are all guaranteed Second Amendment rights. An arm of the state should not be denying those rights. Hopefully this won’t happen again.”

Laurel Democrat Sen. Robert L. Venables, Sr., said none of the housing authorities ever held public hearings before they enacted the gun bans.

“The bureaucrats made those decisions,” Venables said. “I’m not sure they should do that.”

“I am allowed to have a gun in my home to defend myself and my family,” he said. “It seems unfair that good, decent people in a poor economic situation can’t defend their property. I think our constitution should not only apply to people who own their own homes, but to people who live in public housing as well.”

HB 357 defined

According to its synopsis, HB 357 is intended to “address the banning of possession of firearms by certain governmental agencies and entities of the State. Currently, several housing agencies in this state have adopted policies of evicting or threatening to evict law-abiding tenants from their homes merely for the otherwise lawful possession of firearms for self-defense. This practice constitutes discrimination based on economic circumstances leaving these residents at the mercy of criminals.”

The legislation will amend Title 29 of the Delaware Code, which addresses the function of state government, by adding a new chapter that limits the authority of public bodies to regulate arms.

“No public body in this state shall have or exercise the authority to regulate, prohibit, restrict or license the ownership, transfer, possession or transportation of arms, firearms, components of firearms, ammunition or components of ammunition except as expressly and specifically authorized by act of the General Assembly,” the bill states. “Nothing contained herein shall be construed as negating or precluding standard security measures controlling physical access to governmental buildings, offices or institutions.”

It defines public bodies as “any regulatory, administrative, advisory, executive, appointive, or legislative agency or body of this State, or any political subdivision thereof, including, but not limited to, any, board, bureau, commission, department, authority, agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, association, group, panel, council or governmental entity,” created by the General Assembly, or appointed by a public official, which receives government funds.

It specifically excludes the General Assembly from coverage, allowing lawmakers to retain the authority to regulate firearms.

The Caesar Rodney Institute is a 501(c)(3) non-partisan research and educational organization and is committed to being a catalyst for improved performance, accountability, and efficiency in Delaware government.